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72. Exceptions to the Use and Disclosure Offences

Charging a fee for an unlisted number

72.236 The
Telecommunications Act provides that an unlisted number cannot be
disclosed except in specified contexts.[221]
The Act is silent on whether a fee can be charged for an unlisted number. The Carrier
Licence Conditions (Telstra Corporation Limited) Declaration defines an
unlisted number as a public number that is one of the following kinds:

a mobile number, unless the customer and the
carriage service provider that provides the mobile service to the customer
agree that the number will be listed;

a geographic number that the customer and the
carriage service provider that provides services for originating or terminating
carriage services to the customer agree will not be included in the directory;

the number of a public payphone; or

a number that, when dialled, gives access to a
private telephone exchange extension that the customer has requested not be
included in the directory.[222]

72.237 Article 12.2 of the EU Directive Concerning the Processing of
Personal Data and the Protection of Privacy in the Electronic Communications
Sector provides that a fee should not be charged for an unlisted
number:

Member States shall ensure that subscribers are given the
opportunity to determine whether their personal data are included in a public
directory, and if so, which, to the extent that such data are relevant for the
purpose of the directory as determined by the provider of the directory, and to
verify, correct or withdraw such data. Not being included in a public
subscriber directory, verifying, correcting or withdrawing personal data from
it shall be free of charge.[223]

72.238 ACMA has noted that some stakeholders making submissions to
it in relation to its Draft IPND Standard suggested that the imposition of a
fee may impact on a consumer’s decision to choose to have an unlisted number.
Consumers have queried whether such a fee contravenes the Privacy Act,
and asked why a fee is imposed for an unlisted fixed line number, but not for
mobile services.[224]

72.239 In its
submission to ACMA on the Draft IPND Standard, the OPC noted that:

One of the stated objects of the draft standard (clause 5(d))
is that an individual ‘may choose whether his or her customer data is to be
included in a public number directory’. A relevant question then is whether it
is appropriate for individuals to be expected to pay for the right to make
privacy choices. Charging a fee for a silent number or to make other choices
may limit some individuals’ ability to make such choices freely, and thereby
hamper their ability to control their own personal information. The effect that
free silent listings may have on the number of individuals that appear in
directories of public numbers may also need to be considered.[225]

72.240 In DP 72, the ALRC expressed the view that, while charging for
an unlisted number may not be a breach of NPP 8, it reduces an
individual’s ability to control the use or disclosure of their personal
information. Many people request an unlisted number because of safety concerns
or because they do not wish to be contacted by telemarketers.[226] The ALRC therefore
proposed that the Telecommunications Act be amended to prohibit
the charging of a fee for an unlisted (silent) number on a public number
directory.[227]

Submissions and consultations

72.241 A number
of stakeholders supported this proposal.[228]
For example, the OPC submitted that:

The Office receives a number of enquiries and some complaints
from members of the public who object to the payment of a fee to exercise their
choice of being unlisted in the public telephone directory. The Office takes
the view that charging a fee for a silent number may affect individuals’
ability to make such choices freely, and thereby hamper their ability to
control their own personal information. This may be particularly the case in
regard to individuals on low or fixed incomes.[229]

72.242 The
Federation of Community Legal Centres (Vic) supported the proposal, and
submitted that such an amendment would be consistent with the recognition in
the Privacy Act that privacy is a human right and that persons asserting
such a right should be able to do so with as little effort or inconvenience as
possible.

In particular, the proposed amendment recognises the needs of
our clients who are experiencing or have experienced family violence, and who
need to ensure, in as simple and effective a manner as possible, that the
perpetrator is unable to contact them by telephone.[230]

72.243 ACMA
submitted that it understands that consumer expectations of the benefits of
having an unlisted number go beyond the mere omission of the number from public
number directories. For example, having an unlisted number has meant that a
consumer’s CND is blocked and that their details cannot be disclosed from the
IPND for publication in a public number directory or for use by a researcher in
a research project. ACMA also suggested that individuals may not be aware of
what exactly they are paying for by having an unlisted number. Further, it
submitted that it is unclear what administrative costs the fee is intended to
cover—particularly given there is no such fee for mobile phone services.[231]

72.244 The DBCDE
submitted that the proposal will have commercial implications for the White
Pages and other telephone directories.

Not charging for an unlisted number might result in a
considerable increase in the proportion of residential telephone service users
having unlisted numbers. If this were to occur, the number of entries in the
printed and electronic White Pages and other telephone directories, and
therefore their usefulness, would be reduced. It is possible that telephone
directories could eventually become redundant, although this does not appear to
have been the case in the European experience.[232]

72.245 Telstra
strongly objected to the proposal for a number of reasons. First, it noted that
the ALRC had referred to the EU Directive Concerning the Processing of
Personal Data and the Protection of Privacy in the Electronic Communications
Sector, but noted that the ALRC had not considered other comparable
jurisdictions, such as the United States, Canada and Singapore, where customers
are charged for unlisted numbers.

72.246 Telstra
noted that while some individuals may want a silent line to reduce their
telemarketing calls, the ALRC should acknowledge the impact of the introduction
of the Do Not Call Register, existing protections against telemarketing under
the Telecommunications Act and the Privacy Act, and that the
White Pages Online site is protected from unauthorised downloads of data.

72.247 It was
submitted that the Australian telecommunications market is fiercely competitive,
and that consumers can choose a telecommunications service provider that does
not charge for the service. Telstra submitted that there is no market failure
which leads to a need for the price to be regulated or the fee removed.

72.248 Telstra
submitted that the ALRC did not present any evidence to suggest that individuals’
safety is compromised by the charge for an unlisted number. It noted that a
silent line is one aspect of an individual’s approach to the management of
their security. In the period since July 2005, Telstra reported that it has
received only three complaints with respect to the existence of a charge for
silent lines. It submitted that this supports the view that customers see the
value in the service and do not believe that the charge is too high or compromises
safety.

72.249 Telstra
noted that its unlisted number service is a commercial service offered by a
privately-owned company, and that its investors expect a competitive return on
their investment. It observed that it carries a consequent commercial, reputational
and financial risk and incurs costs to provide and maintain the service. These
costs include those of: employing personnel to enter and process data, maintaining
information technology systems, and responding to customer requests; updating the
database to avoid unauthorised disclosure; information technology and systems;
and undertaking sophisticated verification procedures to reduce the mistaken
release of silent line information.

72.250 It was
submitted that the current fee is nominal. The fee has been maintained at a
nominal GST-exclusive price of $2.66 per month for more than 12 years. Telstra
has not increased this fee.[233]

72.251 Telstra
argued that the fee is targeted correctly to the users of the service, and that
it is unreasonable that its customers or shareholders should be asked to subsidise
the services for consumers who wish to take additional steps to protect their
personal security. It argued that, if one of the arguments in favour of this proposal
is to meet the needs of the financially disadvantaged, this is a matter for a government
subsidy and not an appropriate basis on which to recommend that charging of a
fee for an unlisted number on a public number directory should be prohibited.

72.252 Telstra’s
carrier licence requires it to publish a public number print directory. It
argued that the comprehensiveness of the White Pages directory is important to
enable Telstra to comply with other statutory and regulatory obligations, such
as the obligation to provide directory assistance services. As a result, its
systems and processes are geared toward including a customer’s details in the
White Pages directory and related products and services, to maximise the
comprehensiveness of the White Pages directory.

72.253 Telstra
also argued that the issue of charging for an unlisted number has been
considered and rejected by appropriate regulatory bodies, including ACMA. It
also submitted that the proposal ignores specific elements of the Terms of
Reference for the current Inquiry, particularly the requirement that the ALRC consider
‘the desirability of minimising the regulatory burden on business in this area’.[234]

ALRC’s view

72.254 As has
been noted throughout this Report, privacy is recognised internationally as a
human right. This also is reflected in the Preamble to the Privacy Act,
which makes reference to human rights, and specifically to those guaranteed in
the International Covenant on Civil and Political Rights.[235]

72.255 The
Preamble to the Privacy Act also refers to Australia’s obligations at
international law ‘to give effect to the right of persons not to be subjected
to arbitrary or unlawful interference with their privacy, family, home or
correspondence’ and to protect ‘privacy and individual liberties’. While
charging for an unlisted number is not a breach of NPP 8, it is a financial
impediment to accessing a service that will help to protect privacy. A charge
reduces an individual’s ability to control the use or disclosure of their
personal information. This is particularly an issue for individuals on fixed or
low incomes.

72.256 While the
the EU Directive Concerning the
Processing of Personal Data and the Protection of Privacy in the Electronic
Communications Sector provides that a fee should not be charged for
an unlisted number, other jurisdictions do not prohibit the charging of fee.
This is not, however, an argument against prohibiting the charging of a fee for
an unlisted number. In DP 72, the ALRC cited the EU as an example of a
jurisdiction that has chosen to prohibit the charging of a fee for an unlisted
number, not in support of such a prohibition. The ALRC has not been able to
find any information to suggest that the EU Directive has unreasonably
disadvantaged European telecommunications service providers or has resulted in
telephone directories becoming redundant.

72.257 The ALRC
also acknowledges Telstra’s argument that the prohibition on charging a fee
would prevent it from satisfying its licence conditions. A ban on a fee for
unlisted numbers may result in less people choosing to be included in a public
telephone directory. While the result of this recommendation may be that public
number directories are less comprehensive, it would not prevent Telstra
providing directory assistance services or producing a White Pages directory.

72.258 The ALRC
notes Telstra’s arguments that it has received only three complaints with
respect to the existence of a charge for silent lines, and that Telstra cites
this as supporting the view that customers don’t believe that the charge is
unreasonable or compromises safety. The OPC submitted, however, that it
receives a number of enquiries and some complaints from members of the public
who object to the payment of a fee to exercise their choice of being unlisted
in the public telephone directory. The ALRC also is concerned about the needs
of those who have experienced family violence, and who need to ensure that the
perpetrator is unable to contact them. This is not a privacy protection for
which an individual in such a situation should be charged.

Recommendation 72-17 The Telecommunications
Act 1997 (Cth) should be amended to prohibit the charging of a fee for an
unlisted (silent) number on a public number directory.

[225] Office of the Privacy Commissioner, Submission to Telecommunications (Use of Integrated Public Number Database) Draft
Industry Standard 2005, August 2005.

[226] A number of respondents to the ALRC’s National Privacy
Phone-In on 1–2 June 2006 noted that they had unlisted numbers to avoid
telemarketers. See Ch 1 for discussion of the National Privacy Phone-In.